Children in small ads

Another day, another scandal. The Telegraph reports this case where an Adoption Agency, “Adoptionplus” placed adverts in local newspapers saying that two children needed an adoptive placement and seeking adopters to care for them.

http://www.telegraph.co.uk/health/children_shealth/10505544/Adoption-agency-advertises-children-in-local-newspapers.html

Now, although I am very cautious about the accuracy of the Telegraph as a source at present, this one does seem to stand up. There is a copy of the advertisement and one can see from it that this was in a local newspaper, rather than a specialist adoption publication.

(Adoptionplus, if you are wondering, is an adoption agency whose role is to find adoptive families for children on behalf of Local Authorities. They won’t work for one particular Local Authority, but for a range of them)

I have seen this sort of ad before in the national press, but to be honest, always assumed that where a photograph was used it was a model or stock photo, rather than being an actual child who was awaiting an adoptive placement.

Let’s cover a few basic points from the story, because this is important.

1. The names of the children used aren’t their real names.
2.  The newspapers used weren’t ones local to the children’s birth family
3. The Local Authority / the Adoption Agency ought to seek permission from the Court to advertise children for adoption (more on that later)
4. A Local Authority/ the Adoption Agency  cannot properly seek that permission until their Adoption Panel (now Agency Decision Maker) has approved the plan of adoption
5. Not all Local Authorities / Adoption Agencies use adverts in specialist press, and generally it is used only for children who it is known will be difficult to place or who have been waiting a long time.
6. Undoubtedly there is a national shortage of adopters and a large number of children whom the Courts have decided that adoption is what they need.    [There would be many critics of the family justice system who might say here, if we have too many children waiting for adoption already, maybe we should stop using adoption so readily as a solution for families, and y’know, they’d have a point]

The Telegraph say that they have pixellated the child’s face so that you can’t identify it, which was responsible journalism. From that, I take it that the original advertisement does NOT pixellate the child’s face.

But in this instance, I don’t disagree with the Telegraph’s take on it; which is that children who are waiting to be adopted shouldn’t be marketed like second-hand sofas.

This does feel distasteful; for me there is a significant difference between advertising seeking adopters in the local press and advertising particular children. It also seems to me that in days where people have extended family that don’t always live closely to them and where there is social networking such that people’s social circle spreads very widely, even advertising outside of the geographical home of the parents is no guarantee that you aren’t indirectly identifying the child with a photograph.

If you were a parent and someone rang you up to say “Hey, I’ve just seen your Kevin in an advert saying he needs to be adopted, what have you done?” you’d be rightly aghast and horrified.

There is also a difference between advertising specific children in a specialist adoption publication (with permission of the court) and doing so to the general public.  The specialist adoption publications go only to people who have been approved as adopters or social workers involved in matching adopters and children. 

I suspect that somebody can point to some strong research that says that for a difficult to place child, having an advert that makes them come to life (a name, some information about what they like or their personality and a photograph) is by far and away the best way to garner interest. 

I suspect that somebody can also say that as a way of getting prospective adopters to come off the fence and to make that call to say “Yes, I AM interested in adoption, I’ve been thinking about it for a long while, what do I do next?”   seeing a real child or hearing a story about a real child who needs an adoptive parent is a powerful way to achieve that.

I am still uncomfortable about it – I’ll touch on the legal context in a moment, but in my view, if the intention is to advertise to the public (rather than the specialist press which produces magazines or publications that go only to persons who have already been approved as adopters and social workers who are looking for children to match those approved adopters with) then that ought to be spelled out very plainly to the Court and to the parents before that is done.  I would not be happy with using the permission given by the Court to advertise the children being used to place adverts in local newspapers  (because that wouldn’t be what the Court or the parents had in mind when the permission was being sought)

Frankly I don’t like it full stop.

We then go on to what the Telegraph say that the advertisement says

The advert claims adoption is a quick process saying there is “no cost”, “no waiting time” and “no hoops to jump through”.

I can’t see that in the advert that they show, it may well be in the blurb below that piece. IF Adoptionplus did say that in their advert, it is obviously a crock and deeply misleading.

Their website makes it plain that they aim to complete the assessment process in 6 months  (most human beings would describe that as waiting time).  They are right about there being no cost, to be fair.

But the last claim “no hoops to jump through”…  well, if you mean literally, precisely, at any stage in the process does someone produce a plastic or wooden hoop and ask you literally and precisely to jump through it, they are accurate. But if you mean in the figurative sense of the words that anyone would apply to “no hoops to jump through”  that there are no checks or tests that you have to successfully pass in order to move forward, well no.  There are statutory tests and checks to become an adopter, most of which could accurately be described as hoops to jump through

For example, you’d need to show that you were financially capable of managing to care for yourself and a child (which would involve looking at your earnings, savings, outgoings and debt),  you’d need to show that you had no relevant criminal convictions, you’d need to show that you were medically fit to care for a child (which would involve having a medical) and that you had understanding about caring for a child and meeting their needs. Chances are that if you had any serious past relationships, the assessment would explore those and might actually go to the point of wanting to speak to your significant exes.  

Let’s put it this way, if I ring Adoptionplus and say “I understand from your ad that there are no hoops to jump through, I have had five children removed from my care, I’m currently addicted to heroin and I am racist and homophobic”   I think they might qualify the ‘no hoops to jump through’ claim a bit.

The Legal Context

The lead case is Re K (Child) (Adoption : Permission to Advertise) 2007 EWHC 544

That case makes it plain that the welfare of the child is the court’s paramount consideration, and that the process of advertisement is an interference with the child and the parents right to a private and family life under article 8 of the Human Rights Act 1998, and thus is not something that can be done unless it is necessary and proportionate to do so.  (That, following Lord Neuberger’s comments in Re B 2013 might well be a high test indeed)

Although the case doesn’t place a mandatory duty on Local Authorities to seek the Court’s permission (it says that the LA CAN’T place an advert BEFORE their internal Adoption Agency has approved adoption as the plan for the child and that the LA MAY apply to the Court for permission), it is fairly common practice to make such an application if an advertisement is to be placed.

There are potential questions as to whether publication of a photograph of a child, saying that this child is available to be adopted, might cause problems with section 57 of the Adoption and Children Act 2002   (I have put in bold the portion that I think MIGHT be problematic, although there are all sorts of qualifiers on the ability to make such disclosures)

57 Restrictions on disclosure of protected etc. informationE+W

This sectionnoteType=Explanatory Notes has no associated

(1)Any section 56 information kept by an adoption agency which—

(a)is about an adopted person or any other person, and

(b)is or includes identifying information about the person in question,

may only be disclosed by the agency to a person (other than the person the information is about) in pursuance of this group of sections.

(2)Any information kept by an adoption agency—

(a)which the agency has obtained from the Registrar General on an application under section 79(5) and any other information which would enable the adopted person to obtain a certified copy of the record of his birth, or

(b)which is information about an entry relating to the adopted person in the Adoption Contact Register,

may only be disclosed to a person by the agency in pursuance of this group of sections.

(3)In this group of sections, information the disclosure of which to a person is restricted by virtue of subsection (1) or (2) is referred to (in relation to him) as protected information.

(4)Identifying information about a person means information which, whether taken on its own or together with other information disclosed by an adoption agency, identifies the person or enables the person to be identified.

(5)This section does not prevent the disclosure of protected information in pursuance of a prescribed agreement to which the adoption agency is a party.

(6)Regulations may authorise or require an adoption agency to disclose protected information to a person who is not an adopted person.

And of course, the publication of a photograph of a child saying that the child is available to be adopted is clearly Sensitive Personal Data for the purposes of the Data Protection Act and one needs to be sure that the public bodies involved had met the criteria for such use of Sensitive Personal Data.

We don’t know here whether Adoptionplus or the Local Authority involved had made that application to Court and gained the Court’s permission. If they had, they are of course completely covered.  If they had not, then there might be an article 8 claim to be brought by the parents.

(If I were representing a parent in a Placement Order case, I would probably want some reassurances from the LA that they would make an application to Court if they intended to advertise the child for adoption, and for that application to be very particular about where such advertisements might be run and what would be in them)